Baker v. Campbell.

Judges: Gibbs CJ
Mason J
Murphy J
Wilson J
Brennan J
Deane J

Dawson J

Court:
High Court of Australia

Judgment date: Judgment handed down 26 October 1983.

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Dawson J.

This case stated raises the question whether documents held by a firm of solicitors, which were all brought into existence for the purpose of obtaining or giving legal advice, can be seized under a search warrant issued pursuant to sec. 10 of the Crimes Act 1914 (Cth.). The documents, according to the case stated, include opinions given by a member of the firm of solicitors and by counsel. They include documents created solely for the purpose of tendering professional legal advice to the plaintiff otherwise than in relation to existing or contemplated civil or criminal proceedings but none of them is a document relating to an actual transaction. The documents relate to some aspects of a scheme which was devised to minimize liability for sales tax.

The plaintiff, who is a client of the firm of solicitors, contends that the documents held by the firm are the subject of legal professional privilege and, in the absence of waiver or other loss of that privilege, cannot properly be made the subject of the search warrant or seized under it.

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The defendant, who is a member of the Federal Police to whom the search warrant was issued, contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm but says that even if it did, the documents might lawfully be seized under the search warrant.

It is unnecessary to decide between the rival contentions as to the existence of the privilege because the question which is asked of the Court is whether, in the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm, they can properly be made the subject of a search warrant issued under sec. 10 of the Crimes Act. For the purposes of the question, privilege is assumed.

In
O'Reilly & Ors. v. Commr. of the State Bank of Victoria & Ors. 82 ATC 4671 ; (1982) 57 A.L.J.R. 130 (O'Reilly's case) it was held by this Court (Gibbs C.J., Mason and Wilson JJ., Murphy J. dissenting) that legal professional privilege is a rule of evidence only, so that the doctrine is confined in its application to judicial and quasi-judicial proceedings. It did not, so it was held in that case, afford any ground for failing to disclose to officers of the Australian Taxation Office, who were conducting an investigation and exercising powers under the Income Tax Assessment Act 1936 (Cth.), documents to which privilege attached because they were brought into existence for the purpose of the giving or receiving of advice or for the purpose of use in existing or anticipated litigation. Leave was given in these proceedings to re-argue this aspect of O'Reilly's case and it is necessary, therefore, to re-examine the question whether legal professional privilege has an application beyond judicial and quasi-judicial proceedings.

Section 10 of the Crimes Act provides the context in which the extent of legal professional privilege falls to be re-examined in this case. That section, so far as is relevant, provides:

``If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

• (a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
• (b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any... offence [against any law of the Commonwealth or of a Territory]; or
• (c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence,

he may grant a search warrant authorizing any constable named therein... to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place.''

Putting to one side the arguments that the reference in sec. 10(b) to ``evidence'' is a reference to evidence admissible in judicial proceedings and that the issue of a search warrant is a judicial act, if the privilege is no more than a rule of evidence, confined in its application to judicial or quasi-judicial proceedings, then sec. 10 may be construed without regard to it. The section will, if that is so, apply uninhibited by any claim to privilege. If, on the other hand, the rule which gives rise to the privilege is not so confined, the question arises whether sec. 10, upon the ordinary principles of construction which apply to the statutory modification of basic common law rights, is intended to diminish or curtail the extent of the privilege.

The problem, although one of basic principle, should not be seen to have a greater significance than it in fact has. In the first place, those communications to which legal professional privilege attaches are closely confined and the extent to which the privilege could constitute an impediment to administrative or executive investigations is limited. And if the privilege does extend beyond judicial proceedings to administrative inquiries, the question is not whether the legislature has power to abrogate the privilege by appropriate legislation; clearly it has. See
Smorgon v. Australia & New Zealand Banking Group Ltd. 76 ATC 4364 at pp. 4370-4371; (1976) 134 C.L.R. 475

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at p. 487 ;
F.C. of T. v. Australia & New Zealand Banking Group Ltd. 79 ATC 4039 at pp. 4045 and 4055; (1979) 143 C.L.R. 499 at pp. 521 and 540 . It is merely whether the legislature has done so, having regard to the rule which requires the general words of statutes to be construed, if possible, so as not to effect an alteration of common law doctrines or a denial of common law rights.

Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation. See
Grant v. Downs (1976) 135 C.L.R. 674 . There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation. Communications which would otherwise be privileged lose their immunity from disclosure if they amount to participation in a crime or a fraud. The compass within which the doctrine of legal professional privilege operates is, therefore, narrow having regard to the principle which it protects.

In the interpretation of statutes there is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily require that result. See
Potter v. Minahan (1908) 7 C.L.R. 277 at p. 304 ;
Bishop v. Chung Bros. (1907) 4 C.L.R. 1262 at p. 1273 ;
Hocking & Ors. v. Western Australian Bank (1909) 9 C.L.R. 738 at p. 746 ;
R. v. Salisbury (Bishop of) (1901) 1 K.B. 573 ;
Newcastle v. Morris (1870) L.R. 4 H.L. 66 ;
Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) A.C. 1014 ;
Black-Clawson Ltd. v. Papierwerke A.G. (1975) A.C. 591 at p. 650 . Cf.
Maunsell v. Olins (1975) A.C. 373 at p. 394 . Legal professional privilege, whatever the extent of its application, is clearly a doctrine which falls within the presumption. The not dissimilar privilege against self-incrimination is not to be abrogated by statute except in the clearest terms. See
Sorby v. The Commonwealth (1983) 57 A.L.J.R. 248 at pp. 251, 260 and 263 .

At common law there was no compulsory search and seizure; search warrants were only issued to search for stolen goods. Section 10 of the Crimes Act extends the ambit of search warrants but the general words of the section take no account of any specific immunity, such as that conferred by legal professional privilege. If that privilege has an application outside judicial or quasi-judicial proceedings, there can be no real doubt that the general words of sec. 10 are not sufficient to curtail the privilege. Of course, if the legislature were to see the need to achieve that result it could do so by express words, but the Court should not assist that result by reading that intention into the general words of the statute. It may, perhaps, be added that sec. 10 is not a new provision and the fact that it is only now that the present question falls to be determined by this Court is some indication of the measure of acceptance of the view that the power of search and seizure which the section confers in general terms does not extend to documents to which legal professional privilege attaches. It is implicit in such a view that the privilege extends beyond judicial or quasi-judicial proceedings and it is that proposition which is questioned in this case.

In O'Reilly's case the majority was of the view that the law was correctly stated by Diplock L.J. in the Court of Appeal in
Parry-Jones v. Law Society (1969) 1 Ch. 1 at p. 9 , where he said:

``So far as Mr. Parry-Jones' point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a Court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence.''

Parry-Jones v. Law Society is, I think, but slender authority for the proposition that legal professional privilege is relevant only in judicial or quasi-judicial proceedings. The

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ATC 4647

matter does not appear to have been argued at length and was argued by the appellant in person. The decision was not reserved. The point involved was whether the appellant, who was a solicitor, was obliged to produce for inspection by the Law Society documents relating to his practice as a solicitor. The Law Society required production of the documents pursuant to rules made under the Solicitors' Act 1933. Lord Denning M.R. held that the rules overrode any privilege or confidence which otherwise might have subsisted between solicitor and client. He did not deal with the question whether, apart from the rules, the solicitor was entitled to claim privilege for any documents. Diplock L.J. did not develop his observation that privilege was irrelevant ``because, strictly speaking, privilege refers to a right to withhold from a Court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence'' and the remaining member of the Court, Salmon L.J., agreed with both the Master of the Rolls and Diplock L.J.

In
Frank Truman Ltd. v. Police Commissioner (1977) Q.B. 952 , the decision in Parry-Jones v. Law Society was not cited and it appears to have been assumed that a solicitor might lawfully withhold from police attempting to seize documents under a search warrant those documents, otherwise within the scope of the warrant, to which legal professional privilege attached. In
R. v. Peterborough Justice ; Ex parte Hicks (1977) 1 W.L.R. 1371 , it does not appear to have been questioned that in a proper case legal professional privilege could validly be claimed against the production of documents to police acting under a search warrant. Again, Parry-Jones v. Law Society does not appear to have been cited.

In this country, the proposition in Parry-Jones v. Law Society that the doctrine of legal professional privilege is a rule of evidence and applies only in judicial or quasi-judicial proceedings was accepted by Bowen C.J. in Eq. in
Brayley v. Wilton (1976) 2 N.S.W.L.R. 495 and by the Federal Court in
Crowley v. Murphy (1981) 34 A.L.R. 496 .

On the other hand, there are in New Zealand and Canada decisions which constitute a body of authority contrary to the decision in Parry-Jones v. Law Society. In
Commr. of I.R. (N.Z.) v. West-Walker (1953) 10 A.T.D. 337 ; (1954) N.Z.L.R. 191 , the Court of Appeal held that the general words of sec. 163 of the Land and Income Tax Act 1923 (N.Z.) should be read restrictively so as not to require a solicitor to furnish information or produce documents to which legal professional privilege attached when required to do so by the Commissioner of Taxes. That section provided in general terms that every person should when required to do so furnish in writing any information or produce any books or documents which the Commissioner considered relevant for certain specified purposes. Fair J., after considering the authorities, pointed out at N.Z.L.R. p. 206 that, although legal professional privilege had hitherto only been invoked as an immunity from the production of evidence in Court, the basis of the privilege was public interest and that it extended logically to protect the communications to which it attached from all compulsory disclosure with the exception of those amounting to participation in crime or fraud. At N.Z.L.R. p. 208, he expressed his approach, which was that generally adopted by the majority, in these words:

``It seems to me (to quote from Stradling v. Morgan (1560) I Plowden 199; 75 E.R. 505) `consonant with reason and good discretion' ( ibid., at pp. 205 and 315) to consider that this general principle affording special protection in respect of legal advice was not intended to be invaded by the general provision in sec. 163. At best, it is doubtful whether its wide terms were intended to extend to nullify, in effect, the general rule of public policy expressed by the recognition of this privilege, and so it cannot be held to have done so.''

In
Re Director of Investigation & Research & Shell Canada Ltd. (1975) 55 D.L.R. (3D) 713 , the Federal Court of Appeal considered sec. 10 of the Canadian Combines Investigation Act 1970. That section gave to the Director of Investigation and Research wide powers of search and seizure for the purposes of obtaining evidence relevant to matters of inquiry under the Act. The Court concluded that the section should not be construed in such a way that it derogated from the doctrine of legal professional privilege. At p. 722, Jackett C.J. said:

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ATC 4648

``I fully realize that the protection of the confidentiality of the solicitor-and-client relationship has, heretofore, manifested itself mainly, if not entirely, in the privilege afforded to the client against the compulsory revelation of communications between solicitor and client in the giving of evidence in Court or in the judicial process of discovery. In my view, however, this privilege is a mere manifestation of a fundamental principle upon which our judicial system is based, which principle would be breached just as clearly, and with equal injury to our judicial system, by the compulsory form of pre-prosecution discovery envisaged by the Combines Investigation Act as it would be by evidence in Court or by judicial discovery.''

This approach, which is to be found in a number of other Canadian cases, was summarized in
Solosky v. The Queen (1979) 105 D.L.R. (3d) 745 ) by Dickson J., who delivered the judgment of the Supreme Court, at p. 757:

``Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court-room. The Courts, unwilling to so restrict the concept, have extended its application well beyond those limits.''

See also
Re Director of Investigation & Canada Safeway Ltd. (1972) 26 D.L.R. (3d) 745 ;
Re Borden & Elliott & The Queen (1975) 70 D.L.R. (3d) 579 ;
Re B.X. Development Inc. & The Queen (1976) 70 D.L.R. (3d) 366 ;
Descoteaux v. Mierzwinski (1982) 70 C.C.C. (2d) 385 . Cf.
Re Gowling & Henderson & The Queen (1982) 136 D.L.R. (3d) 292 .

The view that legal professional privilege is based upon fundamental principle is not confined to common law countries. In
A.M. & S. Europe v. Commission (E.C.J.) (1983) 3 W.L.R. 17 the European Court of Justice regarded it as a concept common to the laws of member states of the European Economic Community that there should be that degree of confidentiality which is necessary to enable any person, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it (see p. 62).

The common law doctrine of legal professional privilege emerged in the sixteenth century as a natural exception to the then novel right of testimonial compulsion. See Holdsworth, A History of English Law, vol. 9, pp. 201 and 202. The history of the doctrine is traced in Wigmore, vol. 8 (McNaughton rev. 1961), para. 2290 et seq. In its origins it was concerned with the duty of the attorney - his oath and his honour - arising out of his professional relationship with his client rather than with the broader consideration of public interest in the effective working of the legal system. The modern theory that the doctrine is necessary to promote freedom of consultation of legal advisers by clients did not clearly emerge until the nineteenth century. Not surprisingly, since the doctrine represents a curtailment of the judicial search for truth, it had its critics from the beginning (e.g. Jeremy Bentham, ``An Introductory View of the Rationale of Evidence for the Use of Non-Lawyers as well as Lawyers'' (1827), The Works of Jeremy Bentham, 473 et seq. (Bowring ed. 1843)). But it became firmly established in the modern form in which it is expressed, not merely as a rule of evidence, but as a matter of public policy with a natural application wherever compulsory disclosure of evidence is involved, whether in judicial proceedings or not.

The law came to recognize that for its better functioning it was necessary that there should be freedom of communication between a lawyer and his client for the purpose of giving and receiving legal advice and for the purpose of litigation and that this entailed immunity from disclosure of such communications between them. The expression of this expanded concept of confidentiality has in the past been found only in cases dealing with evidence in judicial proceedings. This is not surprising because in the past it was only in the Courts that evidence was given under compulsion and any exception to the compulsion was naturally in the form of a rule of evidence or of discovery.

That is not to say that the reason for the exception does not involve a fundamental

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principle. The rule against self-incrimination may be regarded as a rule of evidence, but underlying it is a right which the law considers to be basic. This was recognized by the majority in
Pyneboard v. TPC (1983) 57 A.L.J.R. 236 which was not prepared to hold that privilege against self-incrimination was inherently incapable of application in non-judicial proceedings, having regard to the view that the rule of the common law nemo tenetur seipsum accusare is too fundamental a bulwark of liberty to be categorized simply as a rule of evidence. See p. 240. So also does legal professional privilege find expression in a rule of evidence, but it stems from a right which is no less fundamental than that which supports the rule against self-incrimination. Indeed, the extension of the privilege against self-incrimination ``is not wholly unconnected with the ideas which originally gave rise to the second of the leading exceptions to the rule of compulsion - the privilege given to legal advisers with respect to communications passing between themselves and their clients'': Holdsworth, op cit. at pp. 201, 202. If in the past it has been sufficient to do no more than apply a rule of evidence in order to enforce that right effectively, it does not mean that when attempts are made outside the Courts to compel the disclosure of evidence the law must ignore there what it regards as so important in the Courts.

Whilst legal professional privilege was originally confined to the maintenance of confidence pursuant to a contractual duty which arises out of a professional relationship, it is now established that its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice. This is why the privilege does not extend to communications arising out of other confidential relationships such as those of doctor and patient, priest and penitent or accountant and client. See
D. v. N.S.P.C.C. (1978) A.C. 171 at pp. 238 and 239 . The restriction of the privilege to the legal profession serves to emphasize that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships. It has been found necessary that professional guidance in the complex processes of the law should be uninhibited by the possibility that what is said to enable advice to be sought or given might later be used against the person seeking the advice. See
Greenough v. Gaskell (1833) 1 My. & K. 98 at p. 105; 39 E.R. 618 at p. 621 .

As was pointed out by Lord Selborne L.C. in
Minet v. Morgan (1873) 8 Ch. App. 361 at p. 366 , the law did not at once ``reach a broad and reasonable footing, but reached it by successive steps, founded upon that respect for principle which usually lead the Court aright''. The cover of legal professional privilege was extended from communications relating to actual litigation to communications in anticipation of litigation and it is now ``sufficient if they pass as professional communications in a professional capacity''. See
Lawrence v. Campbell (1859) 4 Drew 485 at p. 490; 62 E.R. 186 at p. 188 ; Minet v. Morgan, above, at p. 368.

The conflict between the principle that all relevant evidence should be disclosed and the principle that communications between lawyer and client should be confidential has been resolved in favour of the confidentiality of those communications. It has been determined that in this way the public interest is better served because the operation of the adversary system, upon which we depend for the attainment of justice in our society, would otherwise be impaired. See
Waugh v. British Railways Board (1980) A.C. 521 at pp. 535 and 536 . Even if it were otherwise possible (and I do not think that it is), it is too late now to suggest that the public interest would have been better served by restricting legal professional privilege to communications relating to actual or even anticipated litigation.

The privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of the principle makes it

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ATC 4650

inappropriate to regard the doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality is necessary for proper functioning of the legal system and not merely the proper conduct of particular litigation. It is inconsistent with that view to conclude that the compulsory disclosure of communications between legal adviser and client is in the public interest merely because the compulsion is for administrative rather than judicial purposes.

No doubt there are exceptions to the principle that confidentiality should prevail in relation to professional communications in the law. For example, the privilege may be waived and it has no application if the communications are in furtherance of a crime or fraud. Moreover, there is authority for the proposition that the privilege may be lost if a document to which it attaches comes into the hands of someone other than the legal adviser or his client, even dishonestly, so that secondary evidence of it may be given. See
Lloyd v. Mostyn (1842) 10 M. & W. 478 at p. 482; 152 E.R. 558 at pp. 560-561 ;
Calcraft v. Guest (1898) 1 Q.B. 759 ; Waugh v. British Railways Board, above, at p. 536. But see
Ashburton (Lord) v. Pape (1913) 2 Ch. 469 ,
I.T.C. Ltd. v. Video Exchange Ltd. (1982) 3 W.L.R. 125 ;
R. v. Uljee (1982) 1 N.Z.L.R. 561 . The exceptions do no more, however, than demonstrate that the basic principle is not absolute; they do not justify any general conclusion that the principle of confidentiality should yield to the principle that all relevant evidence should be disclosed.

It was suggested in O'Reilly's case at ATC p. 4682; A.L.J.R. p. 138 that the doctrine of legal professional privilege may do little to promote the policy which it is supposed to serve, namely, candour on the part of the client to his legal adviser so that he may be properly advised and properly represented. Speaking for myself, and with the greatest of respect, I should have thought it evident that if communications between legal advisers and their clients were subject to compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious in many cases, upon the freedom with which advice or representation could be given or sought. If a client cannot seek advice from his legal adviser confident that he is not acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected in the instructions he gives, the advice he is given and ultimately in the legal process of which the advice forms part. Moreover, the same reasoning must apply to the compulsory disclosure of the same communications in the course of administrative proceedings which may ultimately result in disadvantage to the client. As a matter of principle or practice it does not seem to me to matter whether the compulsion is at the hands of the executive or at the hands of the judiciary if what is placed in jeopardy is the right to seek guidance in the processes of the law without fear of harm as a consequence.

The present case may serve as an illustration. After an attempt was made to execute the search warrant, the plaintiff, together with others, was charged with conspiracy to defraud the Commonwealth and two separate conspiracies to prevent or defeat the execution or enforcement of two separate laws of the Commonwealth relating to sales tax. See Crimes Act, sec. 86(1)(b) and (e). The complexity of revenue laws is such that the availability of legal advice in relation to them is as necessary and desirable as it is in any other area of the law. Hitherto it has been thought that such advice could be given without fear that it, or the instructions upon which it is given, might be the subject of compulsory disclosure. But the protection which is unquestionably afforded by legal professional privilege in judicial proceedings (in this case criminal proceedings), would be set at nought if by executive or administrative processes revelation of professional confidences could be compelled, particularly if by this means evidence of them might subsequently be given in any subsequent judicial proceedings. It is obvious, to my mind, that any person seeking advice such as must have been sought in this case would be seriously hampered in giving full instructions, as would his legal adviser be in giving advice, by the prospect that the instructions or the advice might have to be disclosed under compulsion and so become available for use, in one way or another, to his disadvantage. Clearly, those instructions and the consequent advice would be likely to be relevant in establishing at least the fact of agreement, which is a necessary part of any conspiracy, and the nature of the agreement. And yet, it is just such relevant

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evidence that the law excludes in judicial proceedings because of its overriding regard for the confidentiality of communications between a legal adviser and his client and it does so at the expense of the availability of the whole of the relevant evidence. It is hardly to be supposed that the principle which lies behind that exclusion is so narrow in its application as to be confined to judicial or quasi-judicial proceedings with the result that it may be thwarted by executive or administrative processes.

It is clear to my mind that the power to compel the disclosure in an administrative inquiry of professional confidences is as likely to destroy the freedom of communication, which the law seeks to protect, between legal adviser and client as effectively as would compulsory disclosure of those confidences in judicial proceedings. It is the possible consequences which are significant and there can be little doubt that nowadays the penalties (and I use the term in a broad sense) which may be imposed administratively are in many instances as disadvantageous as those which may flow from civil or criminal litigation.

The legislature may, of course, if it sees fit to do so, cut across the doctrine of legal professional privilege on occasions when it considers that it is more important to obtain information than to preserve the privilege and no doubt the inclination to do so will be greater in administrative proceedings where the principle has not been seen to operate as it has in judicial proceedings. The legislative imposition of an obligation to disclose professional confidences to the executive is relatively recent, although of increasingly frequent occurrence. But it does not seem to me that the law should ease the way for the legislature to expand the practice nor should it disguise the fact that a principle which the law regards as fundamental is involved.

It is necessary only to add a few words about one justification which is put forward for restricting the application of the doctrine of legal professional privilege to judicial or quasi-judicial proceedings. It is said that there is no appropriate means by which a question of privilege might be tested in a context other than that of judicial or quasi-judicial proceedings and that this is a factor indicating that the privilege should be limited to those proceedings. See e.g. O'Reilly's case at ATC pp. 4682 and 4683; A.L.J.R. pp. 138 and 139. I am bound to say, with respect, that in my view this would be an entirely inadequate reason, even if it existed, for restricting the application of a fundamental principle. However, it does not seem to me that there is any real difficulty. In the first place, the doctrine of legal professional privilege is not ordinarily difficult to apply and there is no reason to suppose that its application in a non-judicial context is any less appropriate than the application of the many other rules of law which must frequently be applied in proceedings other than judicial proceedings. Moreover, should any dispute arise, the means exist whereby a judicial determination of the dispute may be obtained as is indicated by this and the other cases in which such a dispute has arisen. Such a reason was not thought to justify the exclusion of the privilege against self-incrimination from extra-judicial proceedings (see Sorby v. The Commonwealth ), nor should it do so in the case of legal professional privilege.

To view legal professional privilege as being no more than a rule of evidence would, in my view, be to inhibit the policy which supports the doctrine. Indeed, now that there appears to be a tendency to compel the disclosure of evidence as an adjunct to modern administrative procedure (see, for example
Commrs. of Customs and Excise v. Harz (1967) 1 A.C. 760 at pp. 809-810 ), it may well be necessary to emphasize the policy lest it be effectively undermined. For there can be no doubt that freedom of communication between a legal adviser and his client may be greatly diminished by a requirement that the instructions or the advice be disclosed with the consequence that the information might eventually be used in some action against the client, whether in administrative or judicial proceedings.

In my view, the doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence. Section 10 of the Crimes Act does not expressly or by necessary implication restrict the application

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of the doctrine and the section should, therefore, be construed as being not intended to affect it. The only relevant paragraph of sec. 10 would appear to be para. (b), but nothing which appears in the section as a whole would lead to any different conclusion. That conclusion makes it unnecessary to consider the other submissions in this case, including the submission that the evidence to which sec. 10(b) refers is confined to evidence admissible in judicial proceedings.

I would answer the question in the negative.

ORDER

Order that the question referred by the case stated by answered as follows:

Question: In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a Search Warrant issued under sec. 10 of the Crimes Act?

Answer: No.

Order that the defendant pay the plaintiff's costs of and incidental to the case stated to be taxed.